Republican governor: 'Serious constitutional concerns' about deploying the National Guard for immigration enforcement

Foreign nationals are arrested in Los Angeles during a targeted enforcement operation conducted in February by Immigration and Customs Enforcement aimed at immigration fugitives, re-entrants, and at-large criminal aliens.
US Immigration and Customs Enforcement via Associated Press

Republican governors said they had "concerns" about a Friday Associated Press report regarding a leaked draft memo written by the Department of Homeland Security that proposed mobilizing as many as 100,000 National Guard troops to round up and deport unauthorized immigrants.

The draft of the memo, which appeared to have been written by DHS Secretary John Kelly, mentioned mobilizing National Guard troops in 11 states as far north as Oregon. State governors could choose whether they wanted their National Guard troops to participate, according to the memo.

Republican governors were quick to react to the report on Friday morning.

"While we haven't had any contact from the Administration in regard to this issue, I would have concerns about the utilization of National Guard resources for immigration enforcement with the current deployment responsibilities our guardsmen have overseas," Arkansas Gov. Asa Hutchinson told Business Insider.

"During my time at Homeland Security, we utilized National Guard partnerships for specific responsibilities along the border, so the concept is fine, but it's a matter of resources," said Hutchinson, who served under President George W. Bush as the undersecretary for border transportation and security under after 9/11. "In Arkansas, I believe it would be too much of a strain on our National Guard personnel."

Utah Gov. Gary Herbert told Business Insider that "while we cannot speculate as to what may be requested via official channels in the future, we have serious constitutional concerns about activating the National Guard to provide the mentioned services and the potential financial impacts of doing so."

Members of the 82nd Airborne talk to Hurricane Katrina holdouts in New Orleans on September 11, 2005.
Brian Snyder/REUTERS

Mari St. Martin, the communications director for Nevada Gov. Brian Sandoval, told Business Insider that it hadn't been contacted by DHS regarding the draft memo.

"It's premature to comment on potential actions regarding the Nevada National Guard and its citizen-soldiers based entirely on a draft memo and outside speculation," St. Martin said. "The governor said earlier this morning that he didn't think it was an appropriate use of the guard."

John Wittman, the press secretary for the Texas governor's office, told Business Insider: "The Office of the Governor has not received, much less seen, a memo or request from the White House or Department of Homeland Security regarding the use of Texas National Guard troops for immigration enforcement. ... The White House has adamantly denied there are efforts underway to mobilize the National Guard for this purpose."

The Louisiana governor's office told Business Insider that it hadn't been contacted by the Trump administration regarding the memo. The Oklahoma governor's office told Business Insider that it would be "premature to discuss" the memo, as the office hasn't seen the document. The Colorado governor's office also told Business Insider it hadn't been contacted by the Trump administration.

A DHS representative told Business Insider that the AP report was "incorrect," and that the department was "not considering mobilizing the National Guard for immigration enforcement."

"It is irresponsible to be saying this," Spicer said, according to a pool report. "There is no effort at all to round up — to utilize the National Guard to round up illegal immigrants. I wish you guys had asked before you tweeted."

An AP reporter said that the wire service had requested comment from the White House multiple times before publishing. Spicer, meanwhile, said he didn't know if the draft memo had been considered by the DHS and that he knew of "no effort to do what is potentially suggested."

Another DHS official told Cox Media producer Dorey Scheimer that the immigration memo was "a very early, pre-decisional draft ... and was never seriously considered by the department."

Reaz Jafri, an immigration expert and a partner at Withers Bergman, told Business Insider on Friday morning that the DHS memo would be "subject to immediate legal challenges" because it would allow the National Guard to perform the function of Immigration and Customs Enforcement officials — including the "apprehension and detention of individuals that have committed no crime and may otherwise have a legal basis, under our immigration laws, to be in the US."

Claude Arnold, a former ICE special agent who now works for Frontier Solutions, a Virginia-based crisis-management firm, told Business Insider that using the National Guard to enforce immigration laws is not "legally or practically feasible."

Arnold pointed to the Posse Comitatus Act, a federal law that limits the power of military personnel to enforce domestic policies — like immigration laws — within the US. However, Arnold said that under the Bush Administration, National Guard forces were deployed along borders to act as "eyes and ears," and provide supplementary equipment to assist CBP officials.